Baffinland Iron Mines v Inuavak et al, 2021 NUCJ 18

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Baffinland Iron Mines v Inuavak et al, 2021 NUCJ 18 Date: 20210322 Docket: 11-21-048 Registry: Iqaluit Plaintiff: Baffinland Iron Mines Corporation, in its capacity as General Partner of Baffinland Iron Mines LP -and- Defendants: Namen Inuavak, Tom Naqitarvik, Jonathan Pitula, Christopher Akeeagok, Andy Kalluk, John Doe and Jane Doe, and all other persons unknown to the Plaintiff at a blockade at or near Mary River, Nunavut ________________________________________________________________________ Before : Mr.

Justice Rouleau Counsel (Plaintiff): B. Armstrong Counsel (Defendants): L. Idlout, A Crawford Location Heard: Iqaluit, Nunavut Date Heard: March 19, 2021 Matters: Outcome of case management conference to address concerns about transcripts being put before the court ENDORSEMENT

(NOTE: This document may have been edited for publication) ENDORSEMENT [ 1 ] This endorsement follows a case management conference held March 19, 2021 at 4:00 p.m by teleconference. The procedural context is as follows. [ 2 ] On February 9, 2021 the plaintiff brought an ex parte motion for an injunction against protesters obstructing and impeding operations at a mine that it owns and operates at Mary River, Nunavut. Cooper J. directed the plaintiff to notify the defendants, who appeared before the court on February 10. [ 3 ] The parties argued the motion for an interlocutory injunction on February 13, 2021.

Cooper J. reserved her decision, ultimately issuing the interlocutory injunction on March 2, 2021. In the interim, the parties proceeded to cross-examinations on affidavits. [ 4 ] On February 18 and 19, the defendants conducted out-of-court cross-examinations of two of the plaintiff’s representatives, Shawn Stevens and Brian Penney. During these cross-examinations, plaintiff’s counsel objected to a number of questions on the basis that they were irrelevant to the injunction proceedings or that they involved hearsay.

Nevertheless, I was advised that, in certain cases, the plaintiff’s representatives offered answers or partial answers. [ 5 ] On February 25, the plaintiff brought a motion seeking an order: • Prohibiting the defendants from filing the transcript of the out-of-court cross-examination of Shawn Stevens and Brien Penney until a ruling on the objections could be obtained under r. 257; • Dispensing with the filing of the transcripts pursuant to r. 381(4); and • Preventing the transcripts from being used for any purpose outside these proceedings. [ 6 ] This motion was scheduled to be argued March 26, 2021. [ 7 ] In advance of the hearing of the plaintiff’s motion, the parties requested this case management conference in order to address concerns about how the transcripts should be put before the court for the March 26 hearing. [ 8 ] As noted during the conference, the plaintiff’s motion is somewhat unusual in that the plaintiff seeks a ruling on the objections that its own counsel raised during cross-examination, but without filing the transcript of the impugned questions and any partial answers that may have been given despite the objections.

In effect, the plaintiff proposes to provide a copy of the transcripts to the court for inspection, without filing, to permit the court to determine whether the potentially irrelevant portions can be struck from the transcripts before they are filed. [ 9 ] The defendants argue that the plaintiff’s proposal offends the open court principle and threatens to create a covert court proceeding.

By providing the transcripts to the court for a ruling on the objections without properly filing the transcripts, the plaintiffs have effectively obtained a sealing order outside the established process for such an order including, most notably, the typical notice to media outlets. [ 10 ] After hearing the parties’ submissions on these points, I issued the following directions:

• The March 26 motion shall be limited to arguments concerning this court’s authority to strike portions of the transcripts before filing and, if such authority exists, to identifying which portions of the transcript should be struck, and on what basis.

More specifically, the parties’ arguments should focus on the applicability and ambit of the court’s discretion to dispense with the filing of cross- examination transcripts under r. 381(4) of the Rules of Court , including whether the rule permits the court to, in effect, edit the transcripts before they are filed. • The plaintiff shall provide a copy of the transcripts for inspection by the court to provide context for the submissions.

The transcripts shall not form part of the public record, but they shall be available to the court and the parties at the hearing of the motion. • The plaintiff shall provide written submissions on the motion by 8:00 p.m. Iqaluit time on March 19, 2021. The defendants shall provide submissions by March 24, 2021 at 5:00 pm.

The plaintiff shall present its reply submissions at the hearing of the motion on March 26, 2021. • The parties may, in their written submissions, refer the court to the relevant parts of the transcripts and make general reference to the contents, without reproducing or citing the disputed portions. • The March 26 hearing shall be open to the public and listed on the docket. • The hearing is scheduled for a maximum of two and a half hours, beginning at 9:30 a.m.

Iqaluit time. [ 11 ] If, at the conclusion of the hearing, it is determined that the court does not have authority to strike portions of the transcripts prior to filing, or to dispense with filing, the parties are free to bring further motions to seal the file or portions thereof, subject to the established processes for obtaining a sealing order or publication ban. [ 12 ] Counsel for the defendants, Ms. Crawford, signalled her intention to bring a competing motion to be heard at the same time as the plaintiff’s motion. Mr.

Armstrong indicated that the time allotted on March 26 would likely be sufficient for both motions. I make no comment in that respect.